Haiti’s Rendezvous with History

I. Summary and Recommendations

On January 16, 2011, former president-for-life of Haiti, Jean-Claude
"Baby Doc" Duvalier, returned to his homeland after nearly 25 years
in exile. The government of Haiti responded by re-opening a 2008 investigation
into alleged financial crimes, and several victims of serious human rights
violations under the Duvalier government also came forward and filed complaints
with the prosecutor. The investigation into Duvalier’s alleged financial
and human rights crimes is currently underway.

This report provides an overview of human rights violations
under Duvalier, details the current status of the proceedings against him,
including obstacles to a successful prosecution, and analyzes applicable
Haitian and international law. We conclude that investigation and prosecution
of the grave violations of human rights under Duvalier’s rule is required
by Haiti’s obligations under international law. While there are still
obstacles to overcome, the case presents an historic opportunity for Haiti.

Successful prosecution of Duvalier is important not only for
Duvalier’s many victims, but also for Haiti’s struggling judicial
system and for Haitian society more broadly. Bringing Duvalier to justice and
giving him a fair trial could help restore Haitians’ faith in the justice
system and the rule of law. A prosecution could also act as a deterrent to
other leaders, both in Haiti and elsewhere, demonstrating that they can be held
accountable for serious violations of human rights.

The challenges to fair and transparent prosecution of
Duvalier, however, are enormous. Haiti’s judicial system is weak, the
case requires continuing investigations and evidence-gathering, and significant
procedural hurdles need to be addressed, in particular the mistaken view in
some quarters that the prosecution should be barred by Haiti’s statute of
limitations. As this report shows, those obstacles are not insurmountable. The
success of the case will depend on the political will of the government of
Haiti to uphold its obligations under international law and rigorously pursue
what could be the most important criminal case in its history, and on the
willingness of the international community to provide essential support now and
as the case develops.

Human Rights Abuses under Jean-Claude Duvalier

Under the leadership of Jean-Claude Duvalier, the government
of Haiti relied on an extensive network of security forces to enforce its
control through a pattern of human rights abuses, including:

Political Prisoners and the “Triangle of Death”:
Hundreds of political prisoners held in a network of three prisons known as the
“triangle of death” died from maltreatment or were victims of
extrajudicial killings.

“Disappearances” and Political Killings: Many
political prisoners who entered the triangle of death were never released, and
their whereabouts remain unknown to their families. Summary executions of
prisoners are also alleged to have occurred, including prisoners at Fort
Dimanche on August 7, 1974, seven people executed on March 25, 1976, and eight
prisoners reportedly executed at Morne Christophe and Titanyen on September 21,
1977. Political killings by security forces also took place.

Torture: Political prisoners often faced interrogation and
savage torture. A common method of torture—the djak in Haitian
Creole—involved tying the hands of prisoners behind their legs, and
pushing a stick or bar between their legs and arms. The prisoners tied in this
position would be drawn into a ball around the stick, and beaten with
sticks.

Repression of the Press and Political Dissent: Freedoms of
association, assembly, and expression were severely restricted. The government
repeatedly closed independent newspapers and radio stations. Journalists were
beaten, jailed and forced to leave the country.

The Proceedings against Duvalier

Shortly after Duvalier fled the country in 1986, the new
government established a commission to investigate the financial corruption of
the Duvalier government and soon instituted criminal proceedings against
Duvalier for financial crimes. In 2008, another investigation was opened and included
crimes against persons. The government re-instituted these pending cases when
Duvalier returned in January 2011. As of March 16, 2011, 19 Haitian victims of
Duvalier also had filed complaints with the state prosecutor related to crimes
against humanity and human rights violations.

Theories of Duvalier’s Liability

Human Rights Watch has
not seen any evidence that Duvalier was present when the murders, acts of
torture, “disappearances,” or arbitrary detentions of suspects took
place; however, physical presence at a crime scene is not necessary to
establish criminal liability. Under international and Haitian law, Duvalier can
be held criminally responsible via the doctrines of:

Accomplice Liability to Crimes Committed by Subordinates: Evidence exists that Duvalier directly ordered certain crimes, including the
November 1980 mass arrest of activists, many of whom were tortured and
expelled.

Command Responsibility: Duvalier, the legal superior of
the security forces who committed the crimes discussed in this report, may be
criminally liable for those crimes as he was repeatedly made aware of the
crimes and failed to take measures to prevent the crimes or to punish their
perpetrators.

Duvalier’s alleged crimes, including murder, torture,
and false imprisonment, are serious crimes under Haitian law. Under
international law, which is binding on Haiti and has been incorporated into
Haitian law, Haiti has a duty to investigate and punish perpetrators of serious
human rights abuses, a duty which cannot be undermined by statutes of
limitations, amnesties, or other domestic legal obstacles. In addition, the
continuous nature of several of the alleged crimes, namely enforced
disappearances and false imprisonment, prevent their prescription, because the
statute of limitations has not begun to run.

Institutional Challenges Facing the Prosecution

The investigation and trial of a former head of state for
mass crimes committed between 25 and 40 years ago will be a complex endeavor.
Further complicating the issue are the challenges currently facing the Haitian
judicial system, including problems of capacity, limited resources, and
political will. But all of these obstacles can be overcome:

Weak Capacity can be Bolstered by International Support:
The Haitian legal system will have difficulty pursuing the case without broader
support to bolster its weak infrastructure, but with concerted international
efforts, a fair trial for Duvalier in Haiti could kick-start rule of law
efforts and help to begin building the state institutions that Haitians
deserve.

Limited Resources Can Be Used Efficiently: Limited
resources can be maximized by development of a targeted and efficient
prosecution strategy.

Lack of Technical Expertise can be Addressed with Expert
Support: Haiti does not have the experience, and thus, at present, the
expertise to pursue this type of investigation and prosecution. It needs
technical support from the international community.

A Safe Political Environment can be Created through Political
Support: The government has not done enough to ensure a safe environment
for witnesses, prosecutors, court staff, and defense attorneys. Protections
must be in place for the prosecution to be effective and fair. With a new
administration potentially less committed to the Duvalier prosecution soon to
take power in Haiti, the international community also has a role to play in
supporting and encouraging witnesses and officials currently in charge of the
case, and in ensuring that the prosecution is carried through to completion
regardless of who is in power in Haiti.

Recommendations

To the Government of Haiti

Maximize available resources for the prosecution by:

Working with international donors and the UN High Commissioner
for Human Rights to ensure that judicial reform efforts are effectively
targeted to pursue the investigation and prosecution of Duvalier.

Developing a targeted prosecution strategy, selecting a
representative sampling of the gravest crimes for which there is the strongest
evidence.

Assigning sufficient human resources to the investigation and
prosecution.

Facilitating
mechanisms for members of the diaspora to file complaints and testimony
with the court.

Foster a safe political environment for the prosecution by:

Providing security to victims, witnesses, judicial officers, and
others who may be at risk, in collaboration with the Haitian National Police
and the MINUSTAH police forces.

Publicly acknowledging Haiti’s obligation under international
law to prosecute Duvalier’s alleged crimes.

Ensuring that judicial authorities can operate independently and
with sufficient resources.

Ensuring that Duvalier’s rights to a fair trial are fully
respected.

To Haitian Judicial Authorities

Ensure that Jean-Claude Duvalier receives a fair trial in
accordance with international standards.

To the International Community and Donor States

Publicly support Haiti’s attempt to fulfill its
international obligations by investigating and prosecuting Jean-Claude Duvalier.

Provide technical and financial support to the Haitian justice
system to pursue the investigation and prosecution of Duvalier, including
through:

Incorporating
support for this complex prosecution into existing rule of law programs.

Assist the government of Haiti in gathering evidence for the case
through the release of diplomatic cables and other evidence relevant to
Duvalier’s prosecution, including information that demonstrates the
international community had put Duvalier on notice of crimes being committed in
Haiti.

Note on Methodology

This report is based on extensive archival research and
interviews conducted during two Human Rights Watch visits to Haiti in February
and March 2011. Some of the archival research was also conducted in the United
States Library of Congress in Washington, D.C.

Human Rights Watch met with governmental officials to
discuss the status of the prosecution, and interviewed local nongovernmental
organizations, lawyers, journalists, and diplomats. Human Rights Watch also met
with and conducted interviews with several victims who have filed complaints
against Duvalier in domestic court.

This report draws heavily from legacy reports of Human
Rights Watch (then named Americas Watch) and Amnesty International as well as
the 1979 Inter-American Commission on Human Rights report.

II.
Human Rights Abuses under Jean-Claude Duvalier

When Jean-Claude came to power, I was not released. . .
instead, the conditions of my and my brother’s detention got worse. My
brother died in the National Penitentiary in 1972 of bad treatment. I stayed in
prison for eight years, six of them under Jean-Claude.[1]

—Jean, political prisoner arrested without charge September 23,
1969 and released February 18, 1977, Port-au-Prince, Haiti, March 17, 2011

Jean-Claude Duvalier’s government perpetrated
widespread crimes and human rights violations during his 15-year presidency.
There is substantial evidence that military, paramilitary, and police officers
committed these violations while under Duvalier’s de facto and de
jure control. In some cases, there is evidence that they acted under the
direct order of Duvalier. Throughout Duvalier’s 15-year rule, human
rights organizations, foreign politicians, donor governments, diplomats, and
the Inter-American Commission for Human Rights raised their concerns about
these crimes. Thus, Duvalier was on notice and had knowledge that serious human
rights violations were occurring under his command.

Jean-Claude Duvalier came to power in 1971 at age 19,
succeeding his father as president-for-life. His father, François
“Papa Doc” Duvalier (hereinafter Duvalier père),
“executed hundreds of people, imprisoned hundreds more, and drove
thousands into exile, while running the country with an iron fist”
according to US embassy officials.[2]
Inheriting this brutal regime from his father, Duvalier’s 15-year rule
from 1971 to 1986 was marked by grave human rights violations against his
challengers and critics—opposition party members, trade unionists,
independent journalists, university professors, and human rights
activists—and by an absence of fundamental freedoms.

The international community initially hoped that Jean-Claude
Duvalier’s government would be less brutal than his father’s. The
United States Ambassador to Haiti at the time of Duvalier’s ascension,
Clinton Knox, suggested hopefully that “new departures of this regime
represent a general trend towards liberalization.”[3] In
cleaning up its image, the new government sought to reinvigorate the flow of
international assistance that had tapered, and at times disappeared, under
Francois Duvalier’s government. Secretary of State for Defense and the
Interior, Luckner Cambronne, sought to convince the United States of
Duvalier’s good intentions. In a meeting with Knox, Cambronne indicated
that “the [government of Haiti’s] record over Jean-Claude’s
first year in office is a good one and entitles the country to assistance from
abroad.”[4]
The ambassador warned, however, that there remained a risk that
“[e]xpectations [of the populace] may rise to the point where the
government will feel threatened and compelled to adopt repressive measures to
keep the situation in check.”[5]
Despite the international community’s hope for a less repressive
government, the pattern of abuses remained much the same.

As his father had, Duvalier relied on a network of security
forces that enforced control through arbitrary arrests, which often led to
prolonged, incommunicado detention, enforced disappearances, torture, and
extra-judicial killings. Under Jean-Claude Duvalier’s leadership,
hundreds of Haitians were victims of extrajudicial killings or otherwise died
from torture or as the result of inhuman detention conditions.[6]
Many more were forced to flee the country, contributing to the modern Haitian diaspora
that began to build under Duvalier père.

As “President for
life” of Haiti, Jean-Claude Duvalier served as head of state, head of
government, and commander-in-chief of the armed forces and police.[7] A report by US Senator Edward Brooke
following a visit to Haiti in 1977 concluded that “[p]ower is
concentrated in the hands of President Duvalier and a small palace
guard.”[8] He commanded the network of
military and paramilitary organizations that committed a wide range of serious
human rights violations, including arbitrary arrests, torture,
“disappearances,” and extra-judicial executions. The security
apparatus under Duvalier’s command included several overlapping and
conflicting units.[9] Within the army, there
existed five special units, the Presidential Guard, the Léopards Corps
(a counterinsurgency unit), the Port-au-Prince military police, which included
a secret police, the Dessalines Battalion, and a unit at the National
Penitentiary.[10] According to the US Embassy
each of these special units took “orders directly from the
President.”[11] In addition six geographical
military departments were under the supervision of the chief of staff who was
“directly subordinate to the President for operations.”[12]

The police were subordinate to the military. So-called
“Section Chiefs,” deputized by the police, ruled Haiti’s
rural areas, where most Haitians live. As a counterweight to the army, Duvalier
controlled a paramilitary force of some 5,000 to 7,000 irregulars called the Volontaires
de la Sécurité Nationale (Volunteers for National Security or
“VSN”). Duvalier claimed to have abolished the force created by his
father, popularly known as the Tontons Macoutes (“bogeymen”
in Creole) and responsible for “all but eliminat[ing] the rule of law
through extralegal executions, torture, arbitrary arrests, prolonged detention,
and other human rights abuses.”[13]
In fact, Duvalier merely formally reconstituted the force under the name VSN.[14]
In 1983, Human Rights Watch (then Americas Watch) found that the Tontons
Macoutes continued to violate human rights in Haiti.[15]

The most feared force under Duvalier, however, was the
civilian secret police, the Service Detectif (SD). Based on the grounds of the
Presidential Palace, at the Casernes Dessalines, the SD were commanded by the
chief of police of Port-au-Prince, who was also a member of the military, and
were responsible for the detention and interrogation of all persons suspected
of political offenses.[16]

Political offences were outlawed by a 1969 anti-communist
law, according to which all communist activity was illegal and
“terrorists” were declared to be outlaws; however, the law left the
term undefined, allowing the government to selectively apply it against its
critics.[17]
This law punished expression or mere profession of certain ideas, even in
private.[18]
Individuals detained according to this law were known as political prisoners
but in practice, while Duvalier’s government used the law as a cover to
detain individuals, it rarely formally charged many of them, instead holding
them incommunicado and without access to legal remedies.[19]
In 1984, Duvalier’s government passed a law banning all groups which call
themselves political parties, providing security forces additional grounds for
arresting and detaining prisoners for their political beliefs.[20]

Since [the ‘Tontons Macoutes’]
existence, this zone has become a human slaughterhouse. The abuses that have
[been] perpetrated there cannot be enumerated.[21]

—32
citizens of Galette Potonier in a letter addressed to Duvalier, Galette
Potonier, Haiti, December 1975

Documenting human rights
abuses during the Duvalier government was difficult work.[22]
Much of the day to day violence by the Duvalier government outside of the
capital occurred unnoticed by the international community or the few human
rights defenders that operated within Haiti, with only eight cities on the
telephone network and few roads open year round.[23]
Nevertheless, information did find its way out, establishing a pattern of human
rights abuses that, most notably, included the use of a network of prisons to
hold political prisoners in deplorable conditions, the use of torture against
political prisoners, periodic enforced disappearances, and the systematic
repression of the free press and political opposition.

a) Political Prisoners and the Triangle of Death

It is important to understand that prisoners did not just
die of bad conditions at Fort Dimanche, rather persons were condemned to Fort
Dimanche to slowly die of starvation, disease or diarrhea.[24]

—Patrick
Lemoine, political prisoner arrested without charge December 19, 1971 and
released September 21, 1977, New York

Duvalier’s government held hundreds of political
prisoners, often for years at a time, shuffling them through a network of three
prisons that had been established by his father: Casernes Dessalines, located
on grounds of the presidential palace; Fort Dimanche; and the National
Penitentiary. Together, these prisons have been referred to as the
“triangle of death.” Indeed, based on assessments collected from
former detainees, Amnesty International estimated that due to prison
conditions, disease, brutality, torture, and executions, 1 in 10 arrested
Haitians died in the first days of their detention, and 8 in 10 prisoners did
not survive more than two years.[25]

Duvalier used the triangle of death to silence political
dissent. Political prisoners imprisoned under his father remained in the
network, and new prisoners were arrested and entered into the system, with many
disappearing or dying due to the harsh conditions of detention.[26]
Prisoners were held without access to the judicial system or to their families.
Some prisoners who survived remained in detention for six or seven years
without charge,[27]
and at least one prisoner—Claude Rosier—spent 11 years in the
triangle of death.[28]

Fort Dimanche most often served as the detention facility
for long term political prisoners, and was infamous for its inhuman conditions.
Cells that measured approximately 3 meters by 3 meters held up to 33 prisoners
each, allowing each prisoner a space of only 30 centimeters.[29]
Prisoners sometimes had to sleep in shifts, or in rows like sardines. One
survivor explained how sometimes, if a new prisoner made an odd number in the
cell, the extra person would have to squeeze in on one side; with dark humor
the prisoners would joke that if they waited a few days, the problem would go
away because at least one of them would die, making the number even again.[30]

Prisoners received very little food, with one prisoner
estimating the ration constituted little more than 300 calories a day.[31]
If and when prisoners were released, they often weighed a fraction of what they
did when they entered Fort Dimanche.[32]
Sanitation was poor, and communicable diseases easily passed among prisoners,
who often shared the same plate and drinking glass; approximately 18 glasses
served a population of 195 prisoners.[33]

Sometimes the body stays in the cell for some hours after
the death, until the jail officer deigns to authorize its removal. Sometimes,
the prisoners are obliged to eat their meager meals over the corpse of a prison
companion who has just died. The dead man is rolled up in the thin straw mat
that had been his bed, and is carried by the prisoners out to the brush-covered
piece of land where common-law prisoners bury him under a thin layer of earth.
It has sometimes happened that dogs eat the corpse.[34]

—Testimony
of a political prisoner to the Inter-American Commission on Human Rights,
transmitted to the government of Haiti on September 11, 1978

Only one physician, Dr. Treván, was charged with the
medical care of the prisoners, but his visits were limited to two or three per
year.[35]
Prisoners died of pulmonary tuberculosis, diarrhea, dysentery, and other
preventable diseases. Former prisoner Boby Duval—held incommunicado for
almost 9 months in 1977—counted 180 deaths during his detention.[36]

In 1977, under pressure from abroad to clean up his human
rights record, Duvalier said in his new year’s speech that the
protection of human rights “must not violate the respect for sovereignty,
much less serve as a springboard for political maneuvering.”[37]
Unfazed, US President Jimmy Carter’s administration began to pressure the
government to clean up its record. Besieged by telegrams and messages from
Haitians about human rights violations, including the condition of political
prisoners,[38]
United Nations Ambassador Andrew Young carried Carter’s message of
respect for human rights to Haiti in August 1977. In a press conference, he
advised that imprisoning political opponents and the use of brutality does not
contribute to the growth and development of a country, but “ultimately to
its downfall.”[39]
He later in his visit met one-on-one with Duvalier and reiterated this message.

Young also arrived in Haiti with a list of 21 political
prisoners.[40]
According to Young, Duvalier promised he would investigate each case and find
out if the person should come to trial immediately or be released.[41]
Duvalier also agreed to invite an Inter-American Commission on Human Rights
delegation to Haiti for a country visit and to restore habeus corpus and
to limit detention without judicial hearing to the constitutionally permissible
48 hours.[42]
The United States privately believed “Duvalier [did] not intend to
introduce any significant reforms or to refrain from using arrests or the
threat of arrests to remove people he [viewed] as political threats.”[43]
US intelligence recounted that the “IHaitian [sic] goverronent [sic] will
not oppose a visit by the Inter-American Commission on Human Rights because it
feels that any violations of human rights or problems in that reiard [sic] can
be hidden.”[44]

On September 21, 1977, Duvalier released 104 political
prisoners and Haiti formally signed the American Convention on Human Rights.[45]
In a speech the next day, he said that there remained no political prisoners in
all of Haiti.[46]
Duvalier also stated that he decided to release the prisoners on his own will,
and that no one had asked him to do it.[47] The fate of
missing persons, according to the US Embassy in Port-au-Prince, remained
unsolved.[48]
Indeed, Amnesty International quickly questioned the fate of Haitian prisoners
known still to be in detention, including Rochambeau Nestor, Ceres Daccueil,
and Luc Deslmours.[49]

That experience has altered my whole life. You can
never be the same person and anything you do is in reference to that
moment. I have never been able to pass it. It was a horrendous
experience.[50]

—Boby
Duval, political prisoner arrested April 20, 1976 and released in the amnesty
of September 21, 1977, Port-au-Prince, Haiti, March 17, 2011

After the 1977 prisoner release, the government announced
that Fort Dimanche had been closed by order of Duvalier,[51]
though the Inter-American Commission for Human Rights continued to receive
denunciations that the Fort Dimanche had not closed.[52]
Political prisoners continued to be held by the Duvalier government; however,
the pattern of the detention in the later years of the Duvalier regime was more
targeted to repressing the emerging free press and political opposition
movement.

b) “Disappearances” and Political
Killings

The harsh conditions of the triangle of death led many
prisoners to die in prison. After their imprisonment and death, the whereabouts
of these prisoners often remained unknown to their family members. For many
families whose loved ones were not on the list of prisoners Duvalier released
in September 1977, the announcement provided confirmation that they would not
be found.

While many prisoners died from the conditions in Fort
Dimanche or the other triangle of death facilities, others were summarily
executed. Known executions include 11 prisoners at Fort Dimanche on August 7,
1974, and the seven persons killed on March 25, 1976.[53]
Summary executions allegedly occurred even as Duvalier was publicly pledging
the respect of human rights, with eight prisoners reportedly executed at Morne
Christophe and Titanyen on September 21, 1977, the same day of the release of
the 104 prisoners.[54]

“Disappearance” of political prisoners continued
in the waning years of the government. For example, Human Rights Watch (then
Americas Watch), interviewed family members of two persons—Meres Briole
and Joseph Pardorany—“disappeared” after being arrested on
September 9, 1983.[55]
When Human Rights Watch confronted government officials at the Haitian National
Commission for Human Rights about the “disappearances,” it was told
that the two people never existed and that their identities were created by
subversives.[56]

Political killings reached new levels in the final months of
the government. The murder of four students by the army at a peaceful
demonstration in Gonaives on November 28, 1985, outraged the population,
setting in motion a movement to end the Duvalier government.[57]
The killing sparked protests across the country and the government responded
with force that brought international condemnation and prompted the United
States to cut back its aid to Haiti.[58]
On January 31, 1986, Duvalier declared a state of siege,[59]
and unleashed his VSN paramilitary force (Tontons Macoutes) to terrorize
the population.[60]
According to Michael S. Hooper, perhaps the leading expert on human rights
under Duvalier, the Tontons Macoutes killed hundreds of people in the
final days of the Duvalier government.[61] Human Rights Watch
documented at least six people shot and killed on February 5 and 6, 1986, by a Tonton
Macoute in the Bel Air neighborhood of Port-au-Prince.[62]
In these last days, fresh graves were found at a site near the village of Bon
Repos,[63]
where area residents told reporters that visited in early February 1986 that
trucks had come to the site after street protests against the Duvalier
government.[64]

c) Torture

The skin on my buttocks had been torn away. The blood was
running down. They weren’t put off. On the contrary, you could say that
the sight of my blood excited them. When I was on the point of dying, they
untied me and dragged me to a dark cell . . .[65]

—Evans
Paul, arrested October 16, 1980 and released October 26, 1980

Torture was a regular occurrence under Duvalier. In the
transfer of detainees among triangle of death facilities, Casernes Dessalines,
the army barracks located on the grounds of the presidential palace, often
served as the first location of detention.[66] Many political
prisoners faced interrogation and savage torture at the Casernes Dessalines
before their transfer to Fort Dimanche.[67]

The so-called agents of peace [the Tontons Macoutes],
inflicted on him a horrible treatment: the poor man was bludgeoned; they
enjoyed pummeling his stomach with a cudgel, hitting him in the ribs. Besides
wounds here and there, fractures to the spinal column were observed, and the
poor man succumbed in excruciating pain on November 4 at 8 am in public
view. All this happened because he had not what it takes to buy his
freedom.[68]

—32
citizens of Galette Poonier in a letter addressed to Duvalier, Galette
Potonier, Haiti, December 1975

Some well-known cases include the torture of Sylvio Claude
during his 1979 arrest, when security forces applied electric shocks to his
feet,[69]
and of Richard Brisson after the November 28, 1980 raids on activists.[70]
Shortly after the raids, Lafontant Joseph, a lawyer and secretary general of
the Ligue Haitienne des droits humains, the Haitian Human Rights League, was
forcibly arrested and reportedly severely tortured.[71]
In November 1981, several members of the Autonomous Federation of Haitian
Workers (Central Autonome des Travailleurs Haitiens or CATH) and other workers
demonstrating outside the Palais de Justice were also reportedly detained,
taken to Casernes Dessalines, and tortured.[72]

Prisoners who had been
tortured recounted a similar method of torture, called the djak in
Haitian Creole: as already described, their hands were tied behind their legs,
and a stick or bar was then pushed between their legs and arms.[73]
The prisoners tied in this position would be drawn into a ball around the
stick, and from that position, they would be beaten with sticks.[74]

d) Repression of the Press and Political Dissent

Duvalier’s government severely restricted freedoms of
association, assembly, and expression through its complex network of military,
paramilitary, and police forces, which worked to silence independent or
opposition voices. The government repeatedly closed independent newspapers and
radio stations. Journalists were beaten, jailed, and forced to leave the
country. Despite promises of liberalization by Duvalier, the physical assault
and arrest in December 1977 of Bob Nuree, editor of the opposition weekly Jeune
Presse, made clear that any steps by the government towards liberalization
had been cosmetic.[75]

By September 1979, newspapers reported that “Duvalier
terror” gripped Haiti, and that Duvalier had unleashed the Tontons
Macoutes “as a warning to all.”[76]
In the first three weeks of September 1979, 200 people were reportedly arrested
and the secret police had seized, beaten, and jailed leaders of two newly
emerged political parties.[77]
According to newspaper reports, the government also forbade “the
increasingly independent press and radio to report the arrests and any more
complaints about killings and brutality of the Macoutes through the
country.”[78]
Duvalier also reportedly called on his VSN paramilitary force to be
“ready to fight to defend” his government.[79]
In a September 22, 1979 speech commemorating the 22nd anniversary of the
Duvalier regime, Duvalier stated that he would not tolerate subversive
critique.[80]
On the same day, he referred to the VSN as his “first line of
defense,”[81]
saying “[m]en and women of the militia, you are the linchpin of my
government, the major force on which I base myself.”[82]

Prompted by concerns about Duvalier’s new rhetoric,
the Haitian Human Rights League held a meeting to discuss the status of human
rights in Haiti on November 9, 1979.[83]
In what became known as “Black Friday,” a unit of Tontons
Macoutes,[84]
carrying guns, knives, and iron bars[85]
and shouting “Jean-Claude Duvalier,”[86]
violently broke up the meeting, attacking some in attendance, including envoys
from the United States, France, Canada, and West Germany.[87]
United States political officer Ints Silins was slapped sharply across the
face.[88]
The head of the human rights league, Gerard Gourgue, and his wife and daughter
were beaten and Georges Michel, a journalist for Radio Metropole, was
hospitalized with head injuries.[89]
A government communiqué regretted the incident, which it blamed on
“a fight between those present ... as a result of opinions issued in
introductory remarks which were not shared by the audience,” but denied
any involvement in it.[90]

In the remaining years of the Duvalier government, the
regime used increasing repression to contain the growing opposition and free
press. In 1980, the press law was amended to “provide for prison
sentences of one to three years for members of the press engaged in
‘offending the Chief of State or the First Lady of the Republic,’
or ‘making any attack against the integrity of the people’s
culture.’”[91]
This law also required that journalists be licensed through the minister of the
interior, and that all publications be submitted for censorship to the Interior
Ministry 72 hours in advance.[92]

After the November 28, 1980 round-up, the repression of the
press continued. In 1982, a newscaster for Radio Metropole was forced to
discontinue his broadcasts and a group of journalists trying to produce a
political newsletter was arrested, interrogated, and provided a warning that
they should discontinue such attempts.[93] Minister of
Interior Roger Lafontant issued a communiqué in 1984 to remind the press
that they were required to obtain authorization to establish new publications
and failure to observe the procedures provided for in the press law would
result in a government ban of their publication.[94]

Despite these warnings, the press attempted to continue
covering riots over food shortages that broke out in several cities in 1984,[95]
but several journalists were rounded-up, arrested, interrogated, and in some
cases tortured.[96]
In one instance, police interrogated for 40 hours, beat, and broke the fingers
of Pierre Robert Auguste, an editor of a local newspaper, in the presence of
the minister of the interior and the chief of police.[97]
At the end of 1984, approximately 35 intellectuals who spoke against the
corruption of the government were rounded up and imprisoned, held without
charge, and finally released in April 1985.[98] The conditions of
imprisonment were little improved from the period of time when scores of
prisoners died in Fort Dimanche. One imprisoned doctor was beaten to the point
of loss of consciousness for trying to treat a fellow prisoner with a
gastrointestinal illness.[99]

November 28, 1980: Duvalier and the Arrest,
Torture, and Expulsion of Journalists and Activists

The events
of November 28, 1980, when security forces arrested hundreds of journalists
and opposition voices—torturing several of them—illustrate
Duvalier’s personal role in crimes committed by his government.

A period of
liberalization under Duvalier had allowed for the development of independent
journalism, a few opposition parties, and a human rights league,[100] but signs of a coming repression
began to gather in early fall 1980, with the October 13th arrest of Sylvio Claude, head of
the Christian Democratic Party,[101] and of Anthony
“Konpe-Filo” Pascal, a journalist with Radio Haiti Inter, and the
subsequent arrest of Ivens Paul, playwright and station announcer for Radio
Cacique on October 16, 1980.[102]

The election of Ronald Reagan as president of the United States in
November 1980 changed the political calculation for Duvalier. The night of
Reagan’s election, gunshots from the celebrating Tontons Macoutes
could be heard across Port-au-Prince[103] and the
Duvaliers threw a lavish gala to celebrate Jimmy Carter’s defeat.[104] A US official claimed that
“Haitians felt free to act when Carter lost.”[105]

On November 28, 1980, Haiti “inaugurated the most widespread
campaign to repress dissent since the days of “Papa Doc,”
Francois Duvalier, almost a decade [before].”[106] The day began
with the disappearance of several journalists at Radio Haiti Inter. Richard
Brisson, the program manager at Radio Haiti Inter did not show up to work and
station manager Jean Dominique had not returned from running an errand.[107] Radio Haiti Inter began to
broadcast the disappearances, asking for information about the whereabouts of
Brisson and Dominique.[108] In early afternoon,
suddenly the airwaves at Haiti Radio Inter were filled with commotion, as
plainclothes officers raided the station. A recording played over and
over again for 30 minutes, and then the broadcast went silent.[109] The only sound that could be heard
emanating from the station was the methodic click of a skipping record
player, as security forces took everyone in the station into several vans
that transported them to Casernes Dessalines, on the grounds of the
presidential palace.[110] By the end of
the day, between 100 and 400 human rights defenders, opposition political
members, and journalists had been arrested throughout Port-au-Prince.[111] In one sweep, the democratic movement
in Haiti was crushed.[112]

The
conditions of detention were harsh. Stripped of their clothing, detainees
secretly communicated with each from their small cells, trying to piece
together information about what was occurring.[113] One by one, the detainees were
called in for questioning by Chief of Police Colonel Jean Valmé, Major
Emmanuel Orcel, and Colonel Albert Pierre, widely known as “Ti
Boulé,” with Valmé conducting the questioning.[114]As they waited their turn, they could hear the
screams of other detainees being tortured.[115]The detainees were held incommunicado without access
to legal counsel or to their families.[116]

An
editorial by the Ministry of Information ran the next morning in the Nouveau
Monde; entitled “The plot will not succeed,” it was a warning
to “troublemakers” that the “interests of the nation will
prevail.”[117]On November 30, Colonel Jean Valmé issued a
statement about the arrests in which he announced the dismantling of a vast
communist plot:

National and international Communist agitators connected with the media
have been carrying out subversive activities for several months both in the
capital and certain provincial towns in order to create a climate suitable
for the perpetration of terrorist and criminal acts… Faithful to its
duty of ensuring the security of lives and property, the police have, in a
series of raids, succeeded in dismantling a network of agitators, some of
whom have now gone into clandestinity…[118]

In an
interview years after the events, Valmé reportedly asserted that
Duvalier told him to “do what you want with these journalists.”[119] Valmé did not fully
understand the order, and sought clarification from Henri Bayard, Minister of
the Presidency.[120] Bayard reportedly told him to
"do [his] job” and “[a]rrest them.”[121] He also told Valmé not to
worry, “if they did nothing, the president would release them”
the following Monday.

On December
4, the pro-government newspaper Le Nouveau Monde ran a headline
celebrating the arrests; “[t]hey failed in their criminal attempt, the
revolution continues its triumphal march.”[122] Under this headline an official
bulletin was published announcing “the dismantling of a network of
communist agitators,”[123] and another editorial by
Duvalier’s information ministry warning youth about the
“trap” of subversive ideas. The editorial refers to the
“revolution’s” disarmament of conspiratorial and
reactionary groups and cautions that those of mature age must be vigilant and
protect youth from being manipulated by ideologues. It is for this reason,
the editorial claimed, that the government must censure the behavior of those
who unpatriotically lead youth away from their vocation as citizens.[124]The same front page reproduced a communiqué
from the secretary of state for social affairs inviting citizens to a rally
to support Duvalier on December 4, 1980.[125]

At the rally on December 4, Duvalier
vigorously defended his actions, saying that there were Haitians who had
“forgotten” all that he had done to liberalize the country.[126]He warned activists that, “they
must respect [his] power, as my power will respect them.”[127]Alluding to the arrests, he said that
“he did not lose his cool,” but that it was a moment in which one
had to act.[128]

In an interview published on December 8, Duvalier told the New York
Times that the arrests were necessary for the security of the government,
stating “wewere obliged to act for the simple reason most of
these people were implicated in a conspiracy against the security of the
Government…Politics is not a matter for children, [s]ometimes you have
to act even if it is against your feelings.”[129]In an interview
with a Haitian paper the next day, Duvalier reiterated that “the
government did not act lightly” (“n’a pas agi à la
légère”) in imprisoning and expelling the dissidents.[130]

By January
1981, 17 of the journalists that had been arrested were forcibly exiled, and
26 more were charged with acts of terrorism.[131] Several of those arrested had
suffered severe beatings and torture, including journalist Richard Brisson
and Lafontant Joseph, a human rights activist.[132]
An unnamed journalist was so badly beaten around the head, with his hands
tied behind his legs, that upon his return to his cell, he was semi-conscious
and unable to stand.[133]

I was taken. . .to Casernes Dessalines where we were interrogated
under torture. . . I was kept […] hidden below the Palais National,
where there is no daylight. Thanks to the electric torch of the prison guard,
however, I was able to distinguish skeletons, probably those of former
prisoners, lying there on the ground. It was like living a nightmare inside a
mass grave under the Palais National.[134]

—Yves Richard, Secretary General of CATH, arrested November 28, 1980,
date and location of testimony unknown

e) The Need to Investigate Sexual and
Gender—Based Violence

Testimonial evidence from female victims of Duvalier should
be collected to determine whether violations also included sexual violence. The
Tontons Macoutes under Duvalier-père were widely believed to use
sexual violence against women as a means to humiliate women and their husbands
into submission to the regime, without facing punishment. In some instances in
that earlier period, parents would not allow their daughters to go to public
areas where Macoutes were known to be, because “if a Macoute decided
he wanted a girl, he would have her.”[135]

There is anecdotal evidence that politically motivated
sexual crimes continued under Jean-Claude Duvalier. In 1981, Amnesty
International reported that one female refugee living in France claimed that
she had been detained after refusing to have sexual relations with a Tonton
Macoute.[136]
And what we know of Duvalier government treatment of female political prisoners
should give pause. Female prisoners held in the Casernes Dessalines, for
example, recount that they were forced to walk in only their panties to the
washroom, walking through the barracks exposed.[137]
While male prisoners were also forced to walk in their underwear, the nakedness
of female prisoners in front of all-male military police guards and
majority-male prisoners was a form of sexual humiliation.

The issue merits further
investigation because, while there is little documentation of Duvalier-era
sexual crimes at present, it was not standard practice at the time for human
rights organizations or even journalists to report on sexual violence as a
human rights violation.[138]

III. The Proceedings against Duvalier

Shortly after Duvalier fled the country in 1986, the new
government established a commission to investigate the financial corruption of
the Duvalier government and later instituted criminal proceedings against
Duvalier for financial crimes. In 2008, another investigation was opened and
included crimes against persons. The government re-instituted these pending
cases when Duvalier returned in January 2011. Under Haitian law and procedural
rules, the government has until May 19, 2011, to complete its investigation and
charge Duvalier.

The 1986 proceedings began on April 18, 1986, when the state
prosecutor (Commissaire du gouvernement), Ulrick Rosarion, issued instructions
for the investigation of members of the Duvalier government, referred to as the
“Duvalier criminal organization.” Investigating judge (juge
d’instruction) Emmanuel Dutreiuil was assigned to the case. The same
year, cases were instituted against several of the members of his government,
including Luc Desir, an official in Duvalier’s government who also served
as chief of the secret police under Duvalier-père, for crimes including
murder and torture. On January 15, 1987, the governor of the Bank of the
Republic of Haiti issued a report concluding that sufficient evidence existed
that Duvalier alone stole over $120,000,000 from the public coffers of Haiti
and that members of his family and government stole hundreds of millions of
dollars more.

On June 9, 1999, a supplemental instruction enumerating the
allegations in the original 1986 instruction was sent to a new investigating
judge on the case, Pierre Josiard Agnant, who brought charges against Duvalier
and Frantz Merceron for bribery and corruption, Duvalier’s wife Michèle
Duvalier for corruption and as an accomplice to bribery, and several other
named defendants for corruption.[139]
On April 29, 2008, another investigation against Duvalier was opened by the
state prosecutor (Commissaire du gouvernement), Claudy Gassant; it included the
allegations of financial crimes and added crimes against persons, including
potential crimes against humanity. This case was referred to investigating
judge (juged’instruction) Bernard Saint Vil, and was open when Duvalier
returned to Haiti after his 25-year exile.

Commissaire du gouvernement Harycidas Auguste re-instituted
this pending criminal case when Duvalier returned in January 2011. Saint Vil
was no longer available to handle the case, and it was referred to
investigating judge Carvés Jean on January 19, 2011, with instructions
to investigate both alleged financial crimes and crimes against persons,
including murder, torture, arbitrary detention, and disappearances. On January
19, 2011, Duvalier submitted to questioning on corruption and embezzlement
allegedly committed during his 15-year rule. In addition, several victims of
the Duvalier government came forward and filed complaints with the government.
Their complaints formed the basis of further instructions by the commissaire to
investigate Duvalier for human rights violations, including crimes against
humanity. As of March 28, 2011, 16 Haitian victims of Duvalier had filed
complaints with the state prosecutor related to crimes against humanity and
human rights violations, including extrajudicial killings, torture, and
enforced disappearances.[140]

The procedural clock for the investigation began on January
19, 2011, giving the investigating judge three months to determine whether
charges should be brought against Duvalier. The investigating judge may request
an additional month, though these time limits are rarely adhered to in
practice. During this time, the judge may call in witnesses and carry out other
investigative acts. As of March 19, 2011, a number of victims had been
brought before the judge for questioning, as well as two former finance
ministers. At the end of the investigative period, the investigating judge will
issue a notification to the commissaire (“Soit communiqué”),
alerting him that the investigation is complete. The commissaire may then
provide the judge with a final resubmission (“Requisitoire
definitif”) on the charges. The judge will consider the evidence and will
ultimately decide if charges will be brought.

IV. Theories of Duvalier’s Liability

Human Rights Watch is not aware of any evidence that
Duvalier was present when the murders, torture, “disappearances,”
or arbitrary detentions took place. However, under international and Haitian
law, senior leaders ­can be prosecuted for the acts of their subordinates
in a number of ways.

a) Investigating Duvalier as an
Accomplice to Crimes Committed by His Government

A senior leader may be responsible if prosecutors can prove
a causal link between his orders and crimes against civilians committed by his
troops. Liability can also arise if a leader instigated, aided, or abetted the
commission of crimes.

Under Haitian criminal law,[141]
a person can be tried and punished as an accomplice when three conditions
exist: first, a principal act, i.e., a predicate crime; second, an act
of complicity before or concomitant with the commission of the predicate crime;
and, third, mens rea, or knowing participation in the criminal activity.
The code distinguishes between three types of complicity. The first is
complicity by instigation and can take the form of direct provocation through
instructions, promises, threats, and the like; the second type is by procuring
the means for the crime; and, the third, aiding and abetting.

The International Criminal Tribunal for Rwanda (ICTR) has
found that assistance or encouragement alone may be sufficient to establish
individual responsibility.[142]
The ICTR also found that aiding and abetting are distinct juridical concepts.[143]
It has also held that the presence of the accomplice at the crime is not required.[144]
In addition, the act of aiding or abetting can occur through failure to act if
the omission has a decisive effect on the perpetration of the crime or is
accompanied by the requisite intent or mens rea.[145]
The accomplice does not, however, need to share the same intent or mens rea
as the primary author of the crime; rather, the intent “requirement will be satisfied where an individual acts intentionally
and with the awareness that he is influencing or assisting the principal perpetrator to commit the crime.”[146] In addition, the mens rea can be established
circumstantially, including with evidence of prior like behavior, failure to
punish, or verbal encouragement.[147]

When Duvalier
came to power, Haiti’s constitution named the president the supreme chief
and leader of the Armed Forces and VSN, and granted the president all power to
command them.[148] The 1983 constitution confirmed this
power.[149] Many of the acts of torture and
arbitrary attention occurred on the very grounds of the Presidential Palace, in
the Casernes Dessalines.

Duvalier’s public speeches and acts have alluded to
his control over the state apparatuses perpetuating these crimes. In a speech
on June 22, 1971 in front of Fort Dimanche, he said that he was "the
supreme and de facto Leader of the Armed Forces, Police Forces and the National
Security Volunteers [Tontons Macoutes]," and that he was "now
the only Supervisor of the Militia." He also warned that "people who
openly or stealthily try to block the path of our Revolution will be
systematically carried and swept away by this great force of history."[150]
At the September 21, 1977 release of 104 prisoners, Duvalier stated that the
release of prisoners was his decision to make.[151]
In December 1980, after the round-up and torture of journalists and political
opposition, Duvalier said baldly “we were obliged to act.”
In that case, his police chief reportedly said that Duvalier told him to
“do what you want with these journalists.”[152]
Duvalier is alleged to have ordered the detention of businessman Lucien Rigaud
in the National Penitentiary.[153]

The chief of state must do everything. He is like the
father of a family who must take care of everyone. . .[154]

—Jean-Claude
Duvalier, President of Haiti, Port-au-Prince, Haiti, June 30, 1981

In addition to public speeches and acts of Duvalier,
evidence of “insiders,” those who worked in Duvalier’s
system, will be critical to detail Duvalier’s exact role. Important
insiders who are alive today include Colonel Jean Valmé, director of the
secret police and chief of the Port-au-Prince police, and Emmanuel Orcel. Both
have been identified in human rights reports and by victims as perpetrators of
torture and arbitrary arrests.

b) Investigating Duvalier for
Crimes Committed under His Command Responsibility

Duvalier may also be liable under the customary
international law doctrine of “command responsibility” or
“superior responsibility” which holds that individuals who are in
civilian or military authority may under certain circumstances be criminally
liable not solely for their own actions but also for the crimes of those under
their authority.[155]
This principle of liability was applied by Haitian courts in the prosecution of
the April 1994 Raboteau massacre[156]
and resulted in the conviction of a number of superiors including Raoul
Cédras, the leader of the 1991-1994 military junta and Emmanuel
“Toto” Constant, the founder of the paramilitary organization the Front
for the Advancement and Progress of Haiti.[157]

Three elements are needed to establish liability for
criminal acts pursuant to the doctrine of command or superior responsibility:

There
must be a superior-subordinate relationship.

The
superior must have known or had reason to know that the subordinate was about
to commit a crime or had committed a crime.

The
superior failed to take necessary and reasonable measures to prevent the crime
or to punish the perpetrator.[158]

In the Raboteau case, the court found that these elements
resulted in a “crime by omission.”[159]

1. The Superior-Subordinate Relationship

A superior-subordinate relationship is clearest when there
are formal rules, for example when legislation or a military chain of command
specifies the existence of a relationship. However, even in the absence of
formal rules, a superior can have actual and effective control.[160]
Thus, civilian and political superiors, as well as those in military command,
may be held liable under this doctrine.[161]

As president, Duvalier exerted de jure and de
facto command and control over the army, police, and other irregular
security forces,[162]
which committed arbitrary arrests, torture, “disappearances,” and
executions. These groups reported directly to Duvalier.[163]
The state-run prison Fort Dimanche—where prisoners died from
torture—was run by the army.[164]

2. The Superior’s Knowledge

A superior’s knowledge can be proven
either by showing he had “actual knowledge” that his
subordinates were committing or about to commit crimes or that he had
“reason to know” that his subordinates were about to commit or had
committed crimes.[165]

While the fact that a superior had actual knowledge may be
proven through direct evidence, it may—and often is—also
established through circumstantial evidence, i.e., evidence from which an
inference can be made that the superior “must have known” of
subordinates’ criminal acts.[166]
Such evidence can include the number, type, and scope of illegal acts, time
during which the illegal acts occurred, whether the occurrence of the acts is
widespread, the modus operandi of similar illegal acts, and the officers
and staff involved.[167]
International tribunals have also found that a superior’s knowledge may
be presumed if a superior had means to obtain information of a crime and
deliberately refrained from doing so.[168]

The “had reason to know” standard does not
require that the superior had actual knowledge but requires only that he had some
information available to him that would have put him on notice of crimes.[169]
General information about the possibility of crimes is all that is necessary,
not that he have explicit or specific details of them[170]
and that information could be available in many different forms, such as
through a specific report or other written format, or even orally.[171] The key question is whether the superior is in possession of the
information, not whether he acquainted himself with it[172]
because a superior may not remain “willfully blind” to the acts of
subordinates.[173]

As described above, the crimes under Duvalier’s rule
were sufficiently notorious that he “must have
known” about them. And if not, he was personally put on
notice repeatedly by, among others:

US Ambassador Andrew Young, who raised human rights issues with
Duvalier in August 1977 and presented him with a list of 21 political
prisoners;

US Senator Edward Brooke, who discussed human rights with
Duvalier in April 1974[174]
and 1977. Duvalier ordered a 1974 report by Brooke on the human rights
situation in Haiti to be circulated to all cabinet members.[175]
In the 1977 conversation “[Brooke] stressed the need for the GOH to move
rapidly to improve its record regarding respect for human rights.”[176]
According to Brooke, “[Duvalier] said that he was aware of the serious
problems in this area and was moving to rectify them. As proof of the latter he
mentioned that the attempt was being made to improve the situation of prisoners
by the construction of a new and modern prison to replace the present
facilities of the ancient Fort Dimanche.”[177]

Various public releases of prisoners that Duvalier
personally oversaw indicate that he had full knowledge of the imprisonment of
political dissenters. He was also put on notice by international actors about
his human rights record. For example, in 1974, a United States Senate
subcommittee charged that the government of Haiti continued the practice of
Duvalier père and held political prisoners and engaged in political
repression.[178]
When US Senator Edward W. Brooke met with Duvalier in April 1974, Duvalier
attempted to rebut allegations in the report, which he had read.[179]
Duvalier claimed that Haiti, unlike other Latin American countries, had no
political prisoners.[180]
In direct contradiction of this, in September 1974, “about a dozen of
Haiti’s most prominent political prisoners, after being held for two
years without trial, [were] sentenced to life imprisonment by a secret military
court. . .”[181]
Over the next few years, Duvalier pardoned over 100 political prisoners,[182]
again contradicting his assertions. Although Duvalier issued public amnesties
in the succeeding years,[183]
the Inter-American Commission on Human Rights was able to send the government a
note on September 11, 1978, with a list of 151 individuals who, according to
the allegations of accusers, were executed while in prison or who died in
prison between 1974 and 1977 because of lack of medical care.[184]

3. Superior Duty to Take Necessary and Reasonable Measures
to Prevent the Crime and to Punish the Perpetrator

Superiors have both a duty to prevent and a duty to punish
the crimes of subordinate persons. These constitute distinct and independent
legal obligations, but they are not alternative obligations, i.e., a superior
who has reason to know of a crime to be committed cannot wait until the crime
is committed and then impose punishment.[185]

Superiors successfully discharge their duty to prevent subordinate crimes when
they employ all means materially available to them to do so.[186]

A superior’s “duty to punish” arises after
the commission of an offense, and includes at least an obligation to
investigate possible crimes, to establish the facts, and to take steps to
ensure that the perpetrators are sanctioned.[187] Both the criminal
crimes tribunals for Rwanda and the former Yugoslavia have held that evidence
of failure to punish may arise from failure to create or sustain an environment
of discipline and respect for the law.[188]

Human Rights Watch knows of no evidence that Duvalier took
steps to prevent or stem any of the crimes described in this report or that any
of their direct perpetrators were punished.

V. Haiti
has a Duty to Investigate and Punish Duvalier’s Alleged Crimes

Duvalier’s alleged
crimes, including murder, torture, and sequestration, are serious crimes under
Haitian law. These crimes were committed as part of a state apparatus under
Duvalier’s command. Under international law, which is binding on Haiti
and has been incorporated into Haitian law, Haiti has a duty to investigate and
punish perpetrators of serious human rights abuses, a duty which cannot be
undermined by statutes of limitations, amnesties, or other domestic legal
obstacles. In addition, crimes committed as part of systematic or generalized
attacks against civilian populations constitute crimes against humanity.[189]

Article 466 of the Haitian penal code provides a 10-year
limitations period from the date of the commission of the crime for the
prosecution for most of Duvalier’s alleged crimes. After the fall of the
Duvalier government, a decree was adopted on June 18, 1986, to extend the
statute of limitations for crimes against persons (including homicide, murder,
rape, false arrest, and illegal imprisonment) committed under the 25-year Duvalier
regime (from October 22, 1957 to February 7, 1986) to 10-years from the date of
the decree, thus allowing for investigation and prosecution of all Duvalier-era
crimes (Duvalier-pere as well as Jean-Claude Duvalier) through June 18, 1996.[190]
Duvalier’s lawyers and former Minister of Justice Bernard Gousse argue
that this decree prevents the current investigation and prosecution of Duvalier
since that date is now past.[191]
This interpretation fails to consider Haiti’s international human rights
obligations and to consider the jurisprudence that defines some of the alleged
crimes, namely “disappearances,” to be
continuing crimes, and therefore, the statute does not run until the crime is
completed (i.e. the victim's whereabouts determined).

a) Haiti’s International Obligation to
Investigate Serious Violations of Human Rights or Crimes against Humanity
Prevails over Any Statute of Limitations

Once international treaties or agreements are approved and
ratified in the manner stipulated by the Constitution, they become part of the
legislation of the country and abrogate any laws in conflict with them.[192]

Thus, duly ratified international treaties trump any conflicting laws. Haiti is a party to at
least two human rights treaties, the American Convention on Human Rights and
the International Covenant on Civil and Political Rights, which impose
obligations on party states to investigate and punish perpetrators of serious
human rights abuses.

Haiti became a party to the American Convention on Human
Rights in 1977. The Inter-American Court of Human Rights,
whose interpretations of the convention are authoritative and binding on Haiti,
has held repeatedly that in light of states’ obligations to investigate and prosecute crimes under the convention, statutes
of limitations are inadmissible in connection with gross human rights
violations proscribed by international law. The court has ruled that “all
amnesty provisions, provisions on prescription and the establishment of
measures designed to eliminate responsibility are inadmissible under the
convention, because they are intended to prevent the investigation and
punishment of those responsible for serious human rights violations such as
torture, extra-legal, summary or arbitrary execution and forced disappearance, all
of them prohibited because they violate non-derogable rights recognized by
international human rights law.”[193] Thus, as the
crimes allegedly committed by Duvalier constitute serious violations of human
rights, they cannot be prescribed by domestic law.

Moreover, since 1946,
various international instruments have reaffirmed that those responsible for
crimes against humanity must be punished and that states should not enact
legislative or other measures, such as statutes of limitations, to prevent
fulfillment of the international obligation to prosecute persons alleged to
have committed crimes against humanity.

Indeed, the Convention
on the Non-Applicability of Statutory Limitations on War Crimes and Crimes
Against Humanity (1970) was adopted just prior to Jean-Claude Duvalier assuming
power, and the European Convention on the Non-Applicability of Statutory
Limitations on War Crimes and Crimes Against Humanity (1974) was adopted
shortly thereafter. Both treaties set out the principle that there is no time limit
to prosecute crimes against humanity, a principle that is codified in Article
29 of the Rome Statute of the International Criminal Court.

While Haiti has not ratified any international treaty on
statutory limitations, these instruments are evidence of state practice and opinio
juris that statutes of limitations should not be interpreted to bar
prosecution of crimes against humanity. The Inter-American Court of Human
Rights, a body by whose judgments Haiti is legally bound, has also affirmed
that crimes against humanity are not susceptible to application of statutes of
limitation.[194]
In that case the court held that a murder carried out in 1973 should be subject
to prosecution notwithstanding that Chile only became a party to the Court in
1990, on the grounds that in 1973 murder committed in the course of a
generalized or systematic attack against certain sectors of the civil
population was a crime against humanity and therefore in violation of a binding
rule of international law at the time. As the prohibition to commit crimes
against humanity is a jus cogens rule, the punishment of such crimes is
obligatory pursuant to the general principles of international law and statutes
of limitations are not applicable.

As described above, many people taken away by
Duvalier’s forces were never heard from again. The United Nations Working
Group on Enforced or Involuntary Disappearances has recorded a number of cases
dating from the 1981-1985 period: in none of the cases have officials
acknowledged the detainee’s wrongful deprivation of liberty let alone
disclosed their fate or whereabouts. According to the working group,
“most of the cases that occurred during the [1981-1985] period concerned
members or supporters of the Haitian Christian Democrat Party who were
allegedly arrested by members of the Armed Forces or by the Tontons Macoutes.”[195]

Under both French law—on which Haitian law is
based—and international law, the statute of limitations for such acts
does not begin to run until the crime has finished, i.e., until the detained
person is released or his whereabouts are clarified.

Haitian law, like French law, punishes the crime of “sequestration,”[196]which may be translated as “false imprisonment.” The French
Cour de cassation (Supreme Court) has consistently held that “sequestration”
is a “continuing crime.”[197] For such a crime,
the statute of limitations only begins when all the elements of the crime have
been completed—i.e., the victim has been released or his fate clarified.[198]
In the cases filed in France on behalf of disappeared French victims of
Chile’s Augusto Pinochet, the trial judge ruled that the statute of
limitations could not run as long as the victims’ whereabouts were unknown.[199]
Even in the case of murder, the statute of limitations only begins when the
date and the cause of the victims’ death are known.[200]

Similarly, international law criminalizes “enforced
disappearances,” defined as the “arrest, detention, abduction or any
other form of deprivation of liberty by agents of the State or by persons or
groups of persons acting with the authorization, support or acquiescence of the
State, followed by a refusal to acknowledge the deprivation of liberty or by
concealment of the fate or whereabouts of the disappeared person, which place
such a person outside the protection of the law.”[201]
The UN Declaration on the Protection of all Persons from Enforced Disappearance
states that “Acts constituting enforced disappearance shall be considered
a continuing offence as long as the perpetrators continue to conceal the fate
and the whereabouts of persons who have disappeared and these facts remain
unclarified.”[202]

The United Nations Working Group on Enforced or Involuntary
Disappearances, in a recent General Comment, noted that “[e]nforced
disappearances are prototypical continuous acts. The act begins at the time of
the abduction and extends for the whole period of time that the crime is not
complete, that is to say until the State acknowledges the detention or releases
information pertaining to the fate or whereabouts of the individual.” As
a result, said the working group:

“As far as possible, tribunals and other institutions
ought to give effect to enforced disappearance as a continuing crime or human
right violation for as long as all elements of the crime or the violation are
not complete.”

“Where a statute or rule of procedure seems to
negatively affect the continuous violation doctrine, the competent body ought
to construe such a provision as narrowly as possible so that a remedy is
provided or persons prosecuted for the perpetration of the
disappearance.”[203]

The declaration also provides that “All States should
take any lawful and appropriate action available to them to bring to justice
all persons presumed responsible for an act of enforced disappearance, who are
found to be within their jurisdiction or under their control.”[204]

The Inter-American Court
of Human Rights has also recognized the permanent and continuous nature of
forced disappearances. Since its judgment in the Velásquez
Rodríguez case in 1988, the court has consistently reiterated that
“[t]he forced disappearance of human beings is a multiple and continuous
violation of many rights under the convention that the States Parties are
obligated to respect.”[205] A similar understanding of
the nature of forced disappearances is reflected in national case law in the
Americas: courts in Argentina, Bolivia, Mexico, Peru, Uruguay and Venezuela
have treated forced disappearances as continuous offences and crimes against
humanity.[206] The Supreme Court of Mexico
ruled, for instance, that the statute of limitations should be calculated only
from the time the victim’s remains are found.[207]
In Chilean cases involving General Augusto Pinochet, the Supreme Court and the
Court of Appeal of Santiago established the non-applicability of statutes of
limitations.[208]

Thus, because of the continuous nature of the crime, the
allegations against Duvalier for “disappearances” are not
prescribed by any domestic Haitian law, including the 1986 decree.

VI.Institutional Challenges Facing the Prosecution

As described above, international law requires that Haiti
investigate and prosecute Duvalier’s crimes. The investigation and
trial of a former head of state for mass crimes committed between 25 and 40
years ago will be a complex endeavor. Further complicating the issue are the
challenges currently facing the Haitian judicial system. The infrastructure,
already weak, was further weakened by the January 2010 earthquake. Few judicial
resources exist to dedicate to this case. The Haitian judiciary and bar have
little experience or expertise in prosecutions of this nature. And all actors
in the case, including witnesses, victims, judicial officers, and the
defendant, face possible harassment and in some cases possible physical
violence that require attention from Haitian authorities.

a) Weak Capacity Can be Bolstered by International
Support

The Haitian legal system will have difficulty pursuing the
case without international support. Even before the earthquake, the Haitian
judicial system struggled to handle basic criminal cases, let alone complex
trials involving a former head of state. According to a pre-earthquake UN
report,

Arbitrary arrests, unlawful police custody, ill-treatment
and excessive use of force continue to be reported. Lack of technical
expertise, poor communication, negligence and apparent corruption of judicial
authorities are reportedly the source of numerous unlawful arrests, prolonged
pre-trial detention and a low number of court decisions. Public distrust of the
justice system has led many Haitians to avoid the formal court system and rely
on informal methods, such as vigilantism, which further undermines the security
situation.[209]

Haiti's earthquake has further diminished the capacity of
the state and has almost totally undermined its ability to safeguard
fundamental rights. Chronic problems such as violence against women and
inhumane prison conditions have been exacerbated. Most of those who escaped
from jail during the earthquake (almost none of whom had ever been tried)
remain at large.[210]
The failures of reconstruction and confused elections have further eroded
government legitimacy.

Special Advisor to the President of Haiti for Legal Affairs René
Magloire stated clearly: “the Haitian judicial system—and I think
that this is no secret—is very weak.”[211]

Nevertheless, with concerted international efforts, a
prosecution of Duvalier in Haiti could kick-start rule of law efforts and help
to begin building the state institutions that Haitians deserve. Trying these complex cases demands special expertise in
investigating mass violations, understanding the criminal network that led to
their commission, and building the links between Duvalier and other senior
officials and those officers or agents who committed crimes on the ground. It
requires among other things, protecting prosecution and defence witnesses, and
providing adequate security for those involved in proceedings. Enhancing
national capacity to address the most serious crimes under
international criminal law thus has the potential to significantly advance
broader judicial reform efforts and both merits and requires targeted funding
and assistance from international donors.

Resources must also be available to ensure Duvalier’s
right to a fair trial. The Haitian constitution enshrines basic due process
rights, including the right to a fair trial, as does the American Convention on
Human Rights and the International Covenant on Civil and Political Rights
(ICCPR). Under Article 14 of the ICCPR, Duvalier has a number of fair trial
rights, including the right to be presumed innocent until proven guilty; the
right to be informed promptly and in detail of the nature and cause of the
charges against him; the right to adequate time and facilities to prepare his
defense and communicate with a lawyer of his choosing; the right to be tried
without undue delay; and the right not to be compelled to testify against
himself or to confess guilt. Any trial of Duvalier should ensure that these
rights are scrupulously protected.

b) Limited Resources can be Used Efficiently

An investigation and prosecution of this kind requires
significant human resources. Currently, only one juge d’instruction and
one prosecutor are assigned to the case. The government should consider
assigning additional personnel to the Duvalier dossier. Under Haitian law it is
not unprecedented to have more than one investigative judge assigned to a case.

The government’s limited resources can be maximized to
develop a targeted and efficient prosecution strategy. Though his alleged
crimes may be extensive and varied, the government should not attempt to
prosecute Duvalier for all of the alleged crimes of his regime. A better
strategy for the prosecution of Duvalier would be to focus on charges that are
representative of Duvalier’s alleged gravest crimes for which there
exists a strong evidentiary basis.[212]

The prosecution should also ensure that its strategy
includes adequate focus on evidence about the chain of command. It will be
vitally important to balance testimony from victims and witnesses to establish
what crimes took place with sufficient with evidence to establish
Duvalier’s control over the official and unofficial
security forces that committed such serious crimes as well as his knowledge of
the crimes.[213]

c) Lack of Technical Expertise Can be Addressed with
Expert Support

Mass human rights violations presume a criminal network that
facilitates the widespread commission of crimes, in Duvalier’s case a
network of official and unofficial security forces. Uncovering this criminal
network to prove the links between Duvalier and his forces on the ground will
require significant effort and expertise. While there are many skilled jurists
in Haiti, they do not have the experience, and thus, at present, the expertise
to pursue this type of investigation and prosecution. Special Advisor to the
President of Haiti on Legal Affairs René Magloire noted that
“[t]his is the first time a case on crimes against humanity will be
before the Haitian courts.”[214]

On February 1, 2011, United Nations High Commissioner for
Human Rights Navi Pillay “offered the authorities in Haiti technical
assistance towards the prosecution of crimes committed under the leadership of
Jean Claude Duvalier.” According to Pillay:

Haiti has an obligation to investigate the well-documented
serious human rights violations that occurred during the rule of Mr. Duvalier,
and to prosecute those responsible for them . . . Such systematic violations of
rights cannot remain unaddressed. The thousands of Haitians who suffered under
this regime deserve justice. I call on the Haitian authorities to send a
message to the world that their national courts can ensure accountability for
serious violations of human rights, even in difficult humanitarian and
political contexts.[215]

The High Commissioner’s statement is a welcome
development. Overall, international experts with knowledge of how to handle
complex criminal investigations, prosecutions, and trials can help build the
capacity of their national counterparts and promote procedures that provide
guarantees of a fair trial. International staff can also help to buffer
proceedings from political interference and foster judicial independence,
particularly in sensitive cases such as Duvalier’s. In addition to the
expertise provided by the OHCHR, international donors can provide vital support
to the Haitian authorities—including through ongoing judicial reform
efforts—in a number of ways. For instance, donors could consider funding
international experts to provide “behind the scenes” assistance to
prosecutors, judges, and defense attorneys. It could also involve funding or
seconding a temporary complement of international staff to work alongside Haitian
staff, which also would alleviate some of the human resource constraints
identified above.

d) A Safer Political Environment Can be Created
Through Political Support

Technical assistance is important but it will be of little
consequence unless Haitian authorities are committed to vigorously pursuing the
evidence and trying Duvalier—and potentially others—fairly and
effectively. Unfortunately, the two presidential candidates in the March 20,
2011 runoff have not yet demonstrated the requisite political will. (The election
results from the March 20, 2011, were not available at this writing.) Mirlande
Manigat has indicated that the prosecution of Duvalier is “not [her]
business.”[216]
Michel Martelly has welcomed Duvalier’s return and indicated he would be
happy to have Duvalier as an advisor.[217] Such positions
are inconsistent with Haiti’s international law obligations, as outlined
above.

Even under the
administration of President René Préval, which has supported the
prosecution, the government has not yet done enough to create a safe
environment for the investigation and prosecution of Duvalier. Several victims
have expressed concerns for their safety. A group of victims sent a public
letter to President Préval and several ministers calling on the
government to detain Duvalier during the pendency of the proceedings.[218] These victims protest that Duvalier is free to
travel the country and give speeches, in the company of known macoutes,
and to reactivate his network of “henchmen,” while victims face
intimidation and are afforded no protection.[219] The juge d’instruction issued an order
assigning Duvalier to his home, a form of house arrest, on March 24, 2011,
while he was in a hospital.[220]

Several people in direct contact with victims and witnesses
told Human Rights Watch that, in fact, some victims and witnesses would not
come forward in the current environment, particularly given the likelihood that
a new government less supportive of the case than the current administration
may soon take power. To address these concerns, effective witness protection
and adequate security for prosecutors, court staff, and defense attorneys must
be in place for procedures to be effective and fair.

International donors have a role to play in supporting
witness protection and security programs as well as in supporting those in
Haiti committed to the prosecution. Public statements by donors and high-level
foreign officials recognizing the importance of the case and noting
Haiti’s obligations to pursue justice are essential. While UN High
Commissioner Pillay and UN Secretary General Ban Ki Moon[221]
have strongly backed the need to prosecute Duvalier-era crimes, other key
international actors have not made the same demonstration of support. P.J.
Crowley, then spokesperson for the United States Department of State, stated
that what happens to Duvalier is “a matter for the Government of Haiti
and the people of Haiti.”[222]
This is of course is true, but Haiti also has international legal obligations
and will require strong international support to discharge those obligations
and to help foster a domestic climate that favors prosecution. The safety and
security of witnesses, victims, and judicial officers could be enhanced if the
international community demonstrated its commitment to the case and admonished
any intimidation or threats designed to prevent the prosecution from
continuing.

VII. Conclusion

Justice means that the truth should be known, and that all
that happened did not happen in vain… I don’t want [money], to be
compensated from his looted treasury.[223]

—Michèle Montas, complainant in the case against Duvalier,
Port-au-Prince, Haiti, March 16, 2011

The prosecution of Duvalier comes at one of the most
difficult periods in Haiti’s already difficult history. In just over a
year’s time, Haiti has faced innumerable challenges, with the destruction
caused by the earthquake of January 12, 2010, a subsequent slow recovery,
Hurricane Tomas, a cholera epidemic, and contested first-round presidential
elections. Despite the obstacles, we believe the prosecution of Duvalier should
be a priority, providing an opportunity for Haiti to break with the impunity of
the past.

[T]he return of
Jean-Claude Duvalier has brought the country’s turbulent history of
State-sponsored violence to the fore. It is of vital importance that the
Haitian authorities pursue all legal and judicial avenues in this matter. The
prosecution of those responsible for crimes against their own people will
deliver a clear message to the people of Haiti that there can be no impunity.[224]

A Haitian proverb states
that “a constitution is made of paper, but bayonets are made with
steel.”[225] This has been the legacy of most governments of
Haiti, not only of Jean-Claude Duvalier’s. Though it was one of the first
colonies to win independence, Haiti’s path towards establishing the rule
of law has been tortuous. Throughout Haitian history, repressive rulers and
their henchmen have bled the country and its citizens dry.[226] The law has been used to reinforce the
domination of a tiny elite over the great mass of poor peasants and workers and
has almost never functioned to punish even the worst massacres.[227] As a result, the Haitian poor justifiably have
little faith in the Haitian state in general, and the legal system in
particular.[228]

A fair and transparent prosecution of Duvalier in
Haiti—in which victims are able to tell their stories and participate as
“parties civiles”[229]
for one of the first times in history,[230] and in which
Duvalier’s lawyers present a vigorous defense—could help to build
Haitians’ confidence in the justice system. It could also provide a
civics lesson about a particularly dark period of Haitian history which most
Haitians today are too young to remember. In confronting its history head-on,
Haiti has the opportunity to end the cycle of impunity that has left the
majority of its citizens outside the protection of the law.

Justice to me is just the same grappling of this experience
as I have always had . . . but there was an outcry from my gut that something
was wrong and it should be righted. 180 people died physically in front of me
in eight, nine months. [T]wo or three persons a day, dying . . . Justice may
not right what I have seen, but maybe, I don’t know, it will be a beginning
. . . To me, that’s. . . why I wanted to get this story out in the open.[231]

—Boby
Duval, complainant in the case against Duvalier, Port-au-Prince, Haiti, March
17, 2011

Acknowledgments

This report was written by
Amanda M. Klasing, fellow in the Women’s Rights Division of Human Rights
Watch and Reed Brody, counsel and spokesperson in Brussels for Human Rights
Watch, based on archival research and research in Haiti in February and March
2011. Fred Abrahams, special advisor in the Program Office, contributed
additional archival research. The report was edited by Daniel Wilkinson,
Americas deputy director; Param-Preet Singh, senior counsel, International
Justice Program; Aisling Reidy, senior legal advisor; and Joe Saunders, deputy
program director. Americas Division associates Laura Graham and Guillermo
Farias contributed to production of the report. Primum Africa Consulting
(Senegal) translated this report into French. The law firm of Mayer, Brown LLP
(Paris) edited the translation together with Human Rights Watch interns Diane
Douzillé and Alvine Temfack. Dany Khayat and José Caicedo of
Mayer, Brown LLP and Beatrice Bartoli of the Paris Bar assisted with legal
analysis.

Human Rights Watch would like to thank the many
organizations and individuals that contributed to this report, some of whom
asked not to be identified. We are especially grateful for the support provided
by Paul Seils, Luc Coté, and Marieke Wierda from the International
Center for Transitional Justice; Brian Concannon, Jeena Shah, and Corey
Sullivan from the Institute for Justice and Democracy in Haiti; Mario Joseph
from the Bureau des Avocats Internationaux; Pierre Esperance and Marie
Yolène (Lelene) Gilles from the Réseau National de Défense
des Droits Humains; Danièle Magloire from Rights and
Democracy—Haiti; Bill O’Neill from the Social Science Research
Council; Ben Majekodunmi and Antonio Maldonado Paredes from the UN Office of
the High Commissioner for Human Rights; Rodolofo Matarollo, UNASUR Special
Representative to Haiti; and Michel Forst, UN Independent Expert on Human Rights in Haiti. Karin
Ryan of the Carter Center provided us with access to Carter Center
files.

We would also like to thank the government officials we
interviewed. We are especially grateful to Maître René Magloire,
special advisor to the president of Haiti for legal affairs, and his staff for
the information they provided for this report.

We are deeply grateful to the victims of human rights abuses
who shared information with us.

Human Rights Watch takes full responsibility for any errors
or omissions in this report.

[7] See Constitution of the Republic of Haiti, 1964, arts.188-92; see
also “Factors Affecting U.S. Diplomatic and
Assistance Relations with Haiti,” Report Submitted by Senator Edward W.
Brooke to the US Congress, Senate Committee on Appropriations, November 1977,
p. 35.

[8]“Factors Affecting U.S. Diplomatic
and Assistance Relations with Haiti,” Report Submitted by Senator Edward
W. Brooke to the US Congress, Senate Committee on Appropriations, November
1977, p.9.

[9] For a more thorough description of the security apparatus under
Duvalier, see National Coalition for Haitian Refugees, Americas Watch (now
Human Rights Watch/Americas), and Lawyers Committee for International Human
Rights, Rights Denied: A Report on Human Rights in Haiti in 1984 (New York:
Human Rights Watch, 1985).

[10] See US Embassy description of the Haitian Armed Forces in “Factors Affecting U.S. Diplomatic and Assistance Relations
with Haiti,” Report Submitted by Senator Edward W. Brooke to the US
Congress, Senate Committee on Appropriations, November 1977, p. 35.

[14] National Coalition for Haitian Refugees, Americas Watch, and
Lawyers Committee for International Human Rights, Rights Denied: A Report on
Human Rights in Haiti in 1984.

[15] Lawyers Committee for International Human Rights, Americas Watch,
and International League for Human Rights, Haiti: Report of a Human Rights
Mission.

[16] National Coalition for Haitian Refugees, Americas Watch, and
Lawyers Committee for International Human Rights, Rights Denied: A Report on
Human Rights in Haiti in 1984.

[17] “Loi Anti-Communiste,” Le Moniteur, April 28,
1969. The law under article 1 provided that:
“Communist activities, no matter what their form, are hereby declared
crimes against the security of the State” and in article 2 that all
those,” in whatever capacity” who give assistance to the authors of
those crimes shall be declared guilty of the very same crimes. The
perpetrators of and accomplices in crimes were to prosecuted and subject to the
death penalty. For the full text, see Inter-American Commission on Human
Rights, “Report on the Situation of Human Rights in Haiti,”
December 13, 1979, http://www.cidh.oas.org/countryrep/Haiti79eng/toc.htm
(accessed February 2, 2011), ch. 4.

[24] Affidavit of Patrick Lemoine, duly signed State of New York, date
unknown, on file with Human Rights Watch.

[25] Amnesty International, “The Situation in Haiti”; see
also, Amnesty International, “Report on the Situation of Political
Prisoners in Haiti,” 1973. See also, US Department of State, “State
Department Human Rights Report,” 1978, (citing Amnesty International,
“Amnesty International Report, 1975-1976,” 1976, for the
proposition that Haiti has one of the highest prisoner mortality rates in the
world).

[32] See Human Rights Watch Interview with Boby Duval, Port-au-Prince,
February 8, 2011. “When I left Fort Dimanche, I weighed less than 100
pounds.” See also Affidavit of Patrick Lemoine, duly signed State of New
York, date unknown, on file with Human Rights Watch, (stating “I had lost
almost 100 lbs., now weighing less than 90 lbs.”).

[33] Inter-American Commission on Human Rights, “Report on the
Situation of Human Rights in Haiti.”

[37]“The
President for Life of the Republic addresses the balance of governmental action
(Le Président à vie de la République adresse le bilan de
l’action gouvernementale),” Le Nouvelliste, January 3, 1977.

[39] Kathleen Teltsch, “Young Urges Haitian Leader to Move on
Rights,” New York Times, August 16, 1977; the full speech, in
French original, available at “La déclaration de
l’Ambassadeur Young à la Conférence de Presse du 15
Aoút,” Le Nouvelliste, August 1, 1977.

[42] Bureau of Intelligence and Research Current Reports,
“Ambassador Young in Ha!!l [sic],” August 18, 1977, declassified
April 25, 2005.

[43] Memorandum for Dr. Brzezinski from the Situation Room, September
8, 1977, declassified January 31, 2005.

[44] Memorandum for Zbigniew Brzenzinksi from North-South, National
Security Council, September 12, 1977, declassified April 30, 2008. Another
briefing to Brzezinski quotes an unidentified source saying that “we will
hide what has to be hidden.” See Memorandum for Dr. Brzezinski from the
Situation Room, September 8, 1977, declassified January 31, 2005.

[45] Briefing of the Central Intelligence Agency Directorate of
Intelligence, “Significant Developments Related to ‘IHB US Stand on
Human Rights (23-29 September 1977),’” September 1977, declassified
April 30, 2008.

[59] Joseph B. Treaster, “Duvalier Imposes a State of Siege;
Denies his ouster,” The New York Times, February 1, 1986.

[60] James Brooke, “Once More, Duvalier Lets Loose the
‘Bogeyman,’” The New York Times, February 5, 1986.

[61] Michael S. Hooper, Esq., “The Monkey Tail’s Still
Strong,” in North American Congress on Latin America ed., Haiti:
Dangerous Crossroads (Boston: South End Press,1995). Michael S.
Hooper, Esq. served as Executive Director of the National Coalition for Haitian
Refugees, a leading Haitian human rights organization based in the United
States, during the Duvalier years. He wrote over 10 human rights reports on
conditions in Haiti under Duvalier, including reports for Human Rights Watch
(Americas Watch) and Lawyers Committee for International Human Rights.

[71] Amnesty International, “Haiti: Human Rights Violations:
October 1980-October 1981”; see also Karen Payne, “4 exiled
Haitians tell here of beatings of jailed colleagues,” The Miami News,
December 3, 1980 (reporting that the exiled Haitians said Joseph was
“severely beaten and could be heard moaning in his cell”).

[80]“The important
speech of the President for Life of the Republic on the occasion of the 22nd of
September, 1979 (L’Important Discours du President à Vie de la
Republique: A l’occasion du 22 Septembre 1979),” Jean-Claude
Duvalier, September 22, 1979.

[100] After the November 9, 1979 event, Duvalier appointed Georges
Salomon as foreign minister, who in turn established a human rights office.
Then, in December 1979, a commission of journalists was established to reform
the harsh press law imposed three months prior. See Karen De Young,
“Haiti Battle for Control Begins to Surface: Some Liberalization Appears
as Duvalier Faces Problems,” Los Angeles Times, October 9, 1980.

[101] Letter addressed to Sr. David Padilla, assistant to the executive
secretary of the Inter-American Commission on Human Rights, from Haitian
Refugee Project, December 2, 1980.

[111] See, e.g., Lawyers Committee for International Human Rights,
“Report on the August 1981 Trial and November 1981 Appeal of 26 Political
Defendants in Haiti,” March 1982, p. i. and “Letter to Señor
David Padilla, Assistant to the Executive Secretary of the Inter-American
Commission on Human Rights, from Haitian Refugee Project,” December 2,
1980.

[112] “US ‘Concerned’ By Arrest of Haitians,” Atlanta
Daily, December 2, 1980. A spokesperson for the US State Department
expressed “grave concern” about the arrests, stating that
“[the United States] would view an attempt by Haitian authorities to
silence the free expression of political opinion as inconsistent with the
Haitian government’s previous expression of a more liberal system.”

[114] Ibid. Also, Human Rights Watch Telephone Interview with victim, March 31, 2011. In a contemporaneous book on political prisoners,
Valmé and Orcel are identified as leading the anti-communism team, while
Pierre was identified as sadistic killer. See Le Regroupement Des Forces Démocratiques
Haitiennes, Prisonniers Politiques en Haiti (Montreal : RFDH,
1977). Gregoire Eugene
recounted to Chicago Tribune a conversation he had with
Valmé after his arrest on November 28, 1980. According to Eugene,
Valmé told him the reason he would be exiled is because “[t]he
last three issues of [his periodical] Fraternité were too harsh. . . [he
was] stopping friendly foreign governments from aiding the people of
Haiti.” Bernard Nossiter, “Editor’s passport
—‘Good only for exit,’” Chicago Tribune,
December 7, 1980. Valmé,
Orcel, and Pierre were also named by Lucien Rigaud as the people
who interrogated him in 1978 at SD headquarters before he was sent to the
National Penitentiary. See Wendell
Rawls, Jr., “Baby Doc’s Haitian Terror,” The New York
Times Magazine, May 14, 1978.

[118] “Communiqué,” Le Nouvelliste, December
1, 1980; English translation available in Amnesty International, ”Haiti
Briefing,” p. 4. A US embassy official
found the communiqué to be unclear, saying “[w]e have some
indications the government does intend to press formal charges and have trials,
but then we hear rumors that the whole operation was basically designed to put
people in their places and stop the press from being so uppity. I don’t
know which is right… I don’t know what [the communiqué]
means, but that’s all they said… [the US Embassy] has intervened
with senior (Haitian) officials.”; Karen Payne,
“Haiti silent on those rounded up,” The Miami News, December
2, 1980.

[127]Text of the interview unavailable; for a
description of the interview and direct quotations, see see Diederich, The
Price of Blood, Volume II (Le Prix du Sang, Tome II), Jean-Claude Duvalier:
1971-1986: The Heir (L’Héritier), pp. 200-01.

[129] Jo Thomas, “Duvalier Defends Arrests, Warns Haiti
Won’t Tolerate Interference,” The New York Times, December
10, 1980; Duvalier reiterated this point in an interview six months later with
the Miami News, responding to a question about November 28, 1980 by stating,
“we are obliged to protect democratization. We exiled individuals who
imperiled the democratic process…”. Karen Payne interviewing
Duvalier, “Duvalier: I can’t stop boat people,” The Miami
News, June 30, 1981.

[130] “Duvalier warns
the US against the loss of the Western world to the victorious aggression of
communism (Duvalier met les E.U. en garde contre la perte du monde occidental
par l’aggression victorieuse du communisme),” Le Matin,
December 11, 1980.

[131] For a complete overview of the resulting criminal trial, see
Lawyers Committee for International Human Rights, “Report on the August
1981 Trial and November 1981 Appeal of 26 Political Defendants in Haiti,”
March 1982.

[132] Letter to President Jean-Claude Duvalier from Lawyers
Committee for International Human Rights, December 9, 1980; see also Amnesty
International, “Haiti: Human Rights Violations: October 1980-October
1981,” 1981. See also Karen Payne, “4 exiled Haitians tell here of
beatings of jailed colleagues,” The Miami News, December 3, 1980
(reporting that the exiled Haitians recounted being “forced to listen as
at least two of their colleagues were beaten.”).

[138] See, e.g., Human Rights Watch email Beverly Bell, founder and outreach coordinator for Washington Office on Haiti, a
human rights organization, from 1983-1987, focusing on the Duvalier
dictatorship human rights activist, March 16, 2011,
stating, “I wrote many reports about violence
and abuse under Duvalier and never once thought to gender it.” See also
Human Rights Watch Telephone Interview, Michael Levy, former Amnesty
International USA Haiti Coordinator, April 3, 2011, stating, “It was difficult to get information out of Haiti. It was difficult
to information about who was tortured, so it was much harder still to get
information that’s only available in a face-to-face type meeting…
Were we aware that gender-based violence was occurring? Definitely. But, we
were operating under a methodology that required multiple sources to confirm,
for credibility. How could you get multiple sources in a rape case, under these
conditions? And, we would have put women at risk… It’s hard to
imagine the atmosphere of terror and mistrust that was created by the macoute
system.”

[139] On interlocutory appeal, the Cour de Cassation, Haiti’s
highest court, found on July 24, 2001 in favor of appellants Jean Sambour and
Alexandre Paul , who argued that the Cour lacked jurisdiction over the case
until the Cour
Supérieure des Comptes
etdu Contentieux
Administratif issued an avis de débit in
the case.

Those who,
through gifts, promises, threats, abuse of power, machinations or culpable
artifice, have caused the criminal act or gives instructions to commit it.

Those who have
procured weapons, instruments or other means to be used in the criminal act or
that they know would be used in the criminal act.

Those who,
knowingly, aided or assisted the perpetrator or perpetrators of the crime in
the completion of criminal acts, without prejudice to special penalties made by
this Code against conspiracies or incitement detrimental to the internal or
external security of the state, even where the crime that was the subject of
the conspiracy was not committed.

[142] Article 6 (1) of the ICTR statute states that
“a person who planned, instigated, ordered, committed or otherwise aided
and abetted in the planning, preparation or execution of a crime referred to in
articles 2 to 4 of the present Statute, shall be individually responsible for
the crime.” UN Security Council, Statute of the International Criminal
Tribunal for Rwanda (as last amended on 13 October 2006), 8 November 1994, art.
6(1); Prosecutor v. Akayesu, International Criminal Tribunal for
Rwanda, Case No. ICTR-96-4-T, Judgment (Trial Chamber), September 2, 1998, para.
484; see also Prosecutor v. Rutaganda, International Criminal Tribunal
for Rwanda, Case No. ICTR-96-03-T, Judgment (Trial Chamber), December 6, 1999,
para. 43.

[143]“The term “aiding”
means assisting or helping another to commit a crime, and the term
“abetting” means encouraging, advising, or instigating the
commission of a crime.” Prosecutor v. Semanza, International
Criminal Tribunal for Rwanda, Case No. ICTR-97-20-T, Judgment (Trial Chamber),
May 15, 2003, para. 384.

[144]See, e.g., Prosecutor v. Akayesu,
Judgment (Trial Chamber), September 2, 1998, par. 484: “It is not
necessary for the person aiding or abetting another to commit the offence to be
present during the commission of the crime.”; Prosecutor v. Rutaganda,
Judgment (Trial Chamber), December 6, 1999, par. 43: “In both instances,
it is not necessary that the person aiding and abetting another to commit an
offence be present during the commission of the crime. The relevant act of
assistance may be geographically and temporally unconnected to the actual
commission of the offence.”; Prosecutor v. Bagilishema,
International Criminal Tribunal for Rwanda, Case No. ICTR-95-1A, Judgment
(Trial Chamber), June 7, 2001, par. 33: “[T]he participation in the
commission of a crime does not require actual physical presence or physical
assistance.”; Prosecutor v. Kayishema and Ruzindana, International
Criminal Tribunal for Rwanda, Case No. ICTR-95-01, Judgment (Trial chamber),
May 21, 1999, para. 200: “It is not presupposed that the accused must be
present at the scene of the crime, nor that his contribution be a direct
one. That is to say, […] the role of the individual in the
commission of the offence need not always be a tangible one. This is
particularly pertinent where the accused is charged with the
“aiding” or “abetting” of a crime.”

[145]In the case of Prosecutor
v. Blaskic, the court of first instance of the ICTY decided: The Trial
Chamber holds that the actus reus of aiding and abetting may be
perpetrated through an omission, provided this failure to act had a decisive
effect on the commission of the crime and that it was coupled with the
requisite mens rea. In this respect, the mere presence at the crime
scene of a person with superior authority, such as a military commander, is a
probative indication for determining whether that person encouraged or
supported the perpetrators of the crime. Prosecutor v. Blaskic,
International Criminal Tribunal for the former Yugoslavia, Case No. IT-95-14-T,
Judgment (Trial Chamber), March 3, 2000, para. 284.

[150] See, e.g., Jean-Claude Duvalier, Allocution du 21 juin 1971 du
Chef de l’Etat (Jean-Claude Duvalier) au nouveau commandant de la milice
de Fort Dimanche, (Port-au-Prince: Imprimerie Henry Deschamps (1978), where
Duvalier identifies himself as “[t]he Supreme Chief and Effective Head of
the Armed Forces, the Police Forces and the National Security Volunteers (VSN)
and highlights that he is “now the only supervisor of the militia”
and that “individuals who, either openly or secretly, get in the way of
the path of [the] Revolution will be systematically be swept away by this great
force of history.” (unofficial translation) Ibid., as cited in Submission
to the Inter-American Commission on Human Rights of Complainants and Haitian
human rights organizations against ex-President for Life of the Republic of
Haiti Jean-Claude Duvalier, “Impunity in Haiti,” March 28, 2011.

[155] See the International Criminal Tribunal for the Former Yugolslavia
case Prosecutor v. Delalic, et al.: “That military commanders and
other persons occupying positions of superior authority may be held criminally
responsible for the unlawful conduct of their subordinates is a
well-established norm of customary and conventional international law.” Prosecutor v. Delalic, et al.
(Celebici case), International Criminal Tribunal for
the Former Yugoslavia, Case No. IT-96-21-A, Judgment
(Appeals Chamber), February 20, 2001, para. 195; see also Prosecutor v. Kajelijeli, International Criminal
Tribunal for Rwanda, Case No. ICTR 98-44A-A (Appeals
Chamber), May 23, 2005, para. 85; Prosecutor v. Muvunyi, International
Criminal Tribunal for Rwanda, Case No. ICTR 2000-55A-T (Trial Chamber),
September 12, 2006, para. 473.

[156] Ordonnance de Jean SÉNAT FLEURY, Instructive Judge before
the Trial Court of Gonaives, August 27 1999, p. 42: “ Whereas, as a
general principle of law and custom military, a senior military who exercises
command is responsible and is obliged as a commander to ensure the proper
conduct of his subordinates. In the same vein, after performing the act of
issuing an order, a commander must remain vigilant and make necessary
adjustments that are required by the evolving situation. In addition, a commander
is responsible if he knew that his troops or those under his command committed
or were committing a crime and he failed to do what is necessary and reasonable
to ensure the law is respected.“

[157] “Haitian Junta is Sentenced in Absentia,” The New
York Times, November 19, 2000.

[158]Prosecutor
v. Delalic, et al. (Celebici case), International
Criminal Tribunal for the Former Yugoslavia, Case No. IT-96-21-T, Judgment (Trial
Chamber), November 16, 1998, para. 347; Prosecutor v. Kordic and Cerkez,
International Criminal Tribunal for the former Yugoslavia, Case No.
IT-95-14/2A, Judgment (Appeals Chamber), December 17, 2004, para. 839.
See also Article 28 of Statute of the International Criminal Court:
“With respect to superior and subordinate relationships not described in
paragraph (a) [military chain of command], a superior shall be criminally
responsible for crimes within the jurisdiction of the Court committed by
subordinates under his or her effective authority and control, as a result of
his or her failure to exercise control properly over such subordinates,
where: (i) The superior either knew, or consciously disregarded
information which clearly indicated, that the subordinates were committing or
about to commit such crimes; (ii) The crimes concerned activities that
were within the effective responsibility and control of the superior; and
(iii) The superior failed to take all necessary and reasonable measures within
his or her power to prevent or repress their commission or to submit the matter
to the competent authorities for investigation and prosecution.” Rome
Statue of the International Criminal Court, adopted July 17, 1998, Doc. UN.
A/CONF. 183/9, entered into force July 1, 2002, art. 28.

[159]“Crime by Omission (Infraction par
omission).” Ordonnance of Jean SÉNAT FLEURY, p. 97 citing
Art. 86 of the first Additional Protocol to the Geneva Conventions. “The
fact that a breach of the Conventions or of this Protocol was committed by a
subordinate does not absolve his superiors from penal or disciplinary responsibility,
as the case may be, if they knew, or had information which should have enabled
them to conclude in the circumstances at the time, that he was committing or
was going to commit such a breach and if they did not take all feasible
measures within their power to prevent or repress the breach.”

[160]Prosecutor
v. Delalic, et al. (Celebici case), International Criminal Tribunal for the Former Yugoslavia, Case No. IT-96-21-A, Judgment (Appeals
Chamber), February 20, 2001, para. 197: “In determining questions of
responsibility it is necessary to look to effective exercise of power or
control and not to formal titles.” Effective control means the
material ability to prevent or punish criminal conduct, para. 256; Prosecutor
v. Blaskic, International Criminal Tribunal for the former Yugoslavia, Case No. IT-95-14, Judgment (Appeals Chamber), July 29, 2004, para. 375; Prosecutor v. Bagilishema,
International Criminal Tribunal for Rwanda,Case
No. ICTR-95-1A-A(Appeals
Chamber), July 3, 2002, para. 50: “Under Article 6(3), a commander or
superior is the one who possesses the power or authority in either a de jure or a de facto form to prevent a
subordinate’s crime or to punish the commission of a crime by a
subordinate after the crime is committed.”

[161]Prosecutor v. Kajelijeli, International Criminal
Tribunal for Rwanda, Case No. ICTR 98-44A-A, Judgment
(Appeals Chamber), May 23, 2005, para. 85: “[I]t is settled both in ICTR
and ICTY jurisprudence that the definition of a superior is not limited to
military superiors; it also may extend to de jure or de facto civilian superiors.”Prosecutor
v. Delalic, et al. (Celebici case), Judgment(Trial Chamber), November 16, 1998, para. 377: “[I]t is . . .
the Trial Chamber’s conclusion that a superior, whether military or civilian,
may be held liable under the principle of superior responsibility on the basis
of his de facto position of authority. . . .” Prosecutor v. Kordic
and Cerkez, International Criminal Tribunal for the Former
Yugoslavia, Case No.
IT-95-14/2-T, Judgment (Trial Chamber),
February 26, 2001, para. 416: “[A] government official will only be held
liable under the doctrine of command responsibility if he was part of a
superior-subordinate relationship, even if that relationship is an indirect
one.”

[162]93rd US Congress, Senate Committee on
Appropriations, “U.S.
foreign assistance for Haiti,” Report 93-620, July 1974 ; see also
“Factors Affecting U.S. Diplomatic and Assistance Relations with
Haiti,” Report Submitted by Senator Edward W. Brooke to the US Congress,
Senate Committee on Appropriations, November 1977.

[163] Lawyers Committee for International Human Rights, Americas Watch
(now Human Rights Watch/Americas), and International League for Human Rights, Haiti:
Report of a Human Rights Mission

[164]93rd US Congress, Senate Committee on
Appropriations, "U.S.
foreign assistance for Haiti," Report 93-620, July 1974 ; see also
“Factors Affecting U.S. Diplomatic and Assistance Relations with
Haiti,” Report Submitted by Senator Edward W. Brooke to the US Congress,
Senate Committee on Appropriations, November 1977.

[171]Delalic et al., (Appeals Chamber), February 20, 2001, para.
238: “As to the form of the information available to him, it may be
written or oral, and does not need to have the form of specific reports
submitted pursuant to a monitoring system.”

[173]Blaskic, (Appeals Chamber), July 29, 2004, para. 406:
“[T]he Appeals Chamber considers that the mental element ‘had
reason to know’ as articulated in the Statute, does not automatically
imply a duty to obtain information. The Appeals Chamber emphasizes that
responsibility can be imposed for deliberately refraining from finding
out but not for negligently failing to find out.” (emphasis in original).
Delalic, et al., (Appeals Chamber), February 20, 2001, para. 226.

[174] Telegram from US Embassy in Haiti to US State Department,
“Senator Edward W. Brooke Calls on President Jean-Claude Duvalier,”
April 1974, declassified June 2005, paras. 1, 3.

[175] See Telegram from US Embassy in Haiti to US State Department,
“Duvalier pardons 26 political prisoners,” January 1975,
declassified July, 2006, para. 7.

[176]“Factors Affecting U.S. Diplomatic
and Assistance Relations with Haiti,” Report Submitted by Senator Edward
W. Brooke to the US Congress, Senate Committee on Appropriations, November 1977,
p. 10.

[178] 93rd US Congress, Senate Committee on Appropriations, “U.S.
foreign assistance for Haiti,” Report 93-620, July 1974; see also
“Factors Affecting U.S. Diplomatic and Assistance Relations with
Haiti,” Report Submitted by Senator Edward W. Brooke to the U.S.
Congress, Senate Committee on Appropriations, November 1977; see also Telegram from US Embassy in Haiti to US State Department, “Senator
Edward W. Brooke Calls on President Jean-Claude Duvalier; and Telegram from US
Embassy in Haiti to US State Department, “Duvalier pardons 26 political
prisoners” indicating that Duvalier shared the report with his cabinet.

[179] Telegram from US Embassy in Haiti to US State Department,
“Senator Edward W. Brooke Calls on President Jean-Claude Duvalier,”
paras.1, 3.

[181] Greg Chamberlain, “12 gaoled in snub to the US,” The
Guardian, September 18, 1974.

[182] Duvalier pardoned 26 persons the US embassy considered political
prisoners in January 1975, see Telegram from US Embassy in Haiti to US State
Department, “Duvalier pardons 26 political prisoners,” para. 1. On
December 24, 1976, Duvalier released 140 prisoners, 84 that Minister of Justice
Aurelien Jeanty announced were political prisoners. See “Order of Grace
of his excellency the President for Life of the Republic
(L’Arrêté de grace de S. Ex. Le
Président à vie de la République),” Le
Nouvelliste, December 27, 1976; and “The liberation of 140 political
and common law detainees (La libération des 140 détenus
politiques et de droit commun),” Le Nouvelliste, December 27,
1976; and, also, “The AFP comments (L’AFP commente),” Le
Nouvelliste, December 27, 1976. According to
Jeanty, “this decision of President Duvalier [to grant amnesty] was part
of the policy of appeasement and unity.” Ibid.

[183] See, e.g., Telegram from US Embassy in Haiti to US State
Department, “Duvalier pardons 26 political prisoners,” para. 6;
Telegram from US Embassy in Haiti to US State Department, “Duvalier
releases Additional Political and other Prisoners in an Act of Christmas Clemency,”
December 1975, declassified July, 2006, para. 1.

[184] Inter-American Commission on Human Rights, “Report on the
Situation of Human Rights in Haiti.”

[188]Bagilishema, Judgment (Trial Chamber) June 7, 2001,para. 50. “The Chamber is of the
view that, in the case of failure to punish, a superior’s responsibility
may arise from his or her failure to create or sustain among the persons under
his or her control, an environment of discipline and respect for the
law.” For example, in Celebici, the Trial Chamber cited evidence
that Mucic, the accused prison warden, never punished guards, was frequently
absent from the camp at night, and failed to enforce any instructions he did
happen to give out. In Blaskic, the accused had led his subordinates to
understand that certain types of illegal conduct were acceptable and would not
result in punishment. Both Mucic and Blaskic tolerated indiscipline among their
subordinates, causing them to believe that acts in disregard of the dictates of
humanitarian law would go unpunished. It follows that command responsibility
for failure to punish may be triggered by a broadly based pattern of conduct by
a superior, which in effect encourages the commission of atrocities by his or
her subordinates.” Ibid.

[195] United Nations Working Group on Enforced or Involuntary
Disappearances, “Report of the Working Group on
Enforced or Involuntary Disappearances,”
E/CN.4/2006/56 and Corr. 1 and A/HRC/4/41, 2006, para. 200.

[196]., September 1,
2004, para. 278 for the former Yugoslavia, they'ple coundangered the
stability nst its critics.Article 289 of the Haitian
Penal Code states:
“Those who, without orders from established authorities or where the law
requires it, have arrested, detained or abducted any persons shall be punished
with imprisonment from one to five years.” (unofficial translation).
Article L. 224-1 of the French Penal Code states in similar terms: “The arrest, abduction, detention or
imprisonment of a person without an order from an established authority and
outside the cases provided by law is punished by twenty years' criminal
imprisonment.”

[201] International Convention for the Protection of All Persons from
Enforced Disappearance adopted December 20, 2006, G.A. res. 61/177, U.N. Doc.
A/Res/61/177 (2006) , art. 1. Haiti has signed but not ratified the Convention.

[208] See Case of Caravana, Criminal Chamber of the Supreme Court of Chile, judgment of July
20, 1999; Case of the withdrawal of immunity from Pinochet, Plenary of
the Supreme Court of Chile, judgment of August 8, 2000; Case of Sandoval, Court
of Appeal of Santiago, Chile, judgment of January 4, 2004.

[209] United Nations Office of the High Commissioner for Human Rights,
“OHCHR in Haiti (2008-2009),” 2009, http://www.ohchr.org/EN/Countries/LACRegion/Pages/HTSummary0809.aspx
(accessed March 21, 2011).

[211]See Statement of Mr. René Magloire (Special Advisor to the President of Haiti,
Legal Affairs, as an Individual), 40th Parliament of
Canada, 3rd Session, Standing Committee on Foreign Affairs and International
Development, Monday, March 7, 2011.

[212] Otherwise there is a real risk that a prosecution which is not
sufficiently narrow may lead to a long and expensive process. Such was
the case of the prosecution of Slobodan Milosevic before the International
Criminal Tribunal for the former Yugoslavia, in which the accused died during
the trial. See Human Rights Watch, Weighing the Evidence: Lessons from the
Slobodan Milosevic Trial, vol. 18, no. 10(D), December 2006, http://www.hrw.org/sites/default/files/reports/milosevic1206webwcover.pdf.

[213] In drawing the lessons from the Milosevic case, Human Rights Watch
concluded that “in the case of a high-ranking official who is not present
at the crime scenes, the prosecution should from the outset ensure that
adequate focus is given to evidence of the chain of command and not
disproportionately to victims’ testimony from crime scenes,” ibid.

[214] See Statement of Mr. René Magloire (Special Advisor to the President of Haiti, Legal Affairs, as an Individual) 40th Parliament of
Canada, 3rd Session, Standing Committee on Foreign Affairs and International
Development, Monday, March 7, 2011.

[228] Even now, people do not trust the justice system. Women who
have been victims of sexual-based violence and have lived in informal
displacement camps since January 2010 tell Human Rights Watch, when asked if
they filed complaints with the police, “there is no one here to take care
of us. Only God watches over us.” See Human Rights Watch Interview with
resident of Champs-Mars camp, Port-au-Prince, Haiti, November 15, 2010.

[229] Partie civile is common inlegal systems modeled on the French system. It allows a crime victim to file a complaint with the prosecutor, or directly with the court, and participate as a party in the case as it goes forward.

[230] The trial surrounding the April 1994 massacre
in the Raboteau slum of Gonaives city is the only
other comparable complex prosecution for human rights violations undertaken in
Haiti. The most significant human rights trial
in Haitian history resulted in the convictions of 53 officers and soldiers.
Five years later, under an interim government, a court overturned those
convictions in an internationally condemned ruling. For
more information, see Institute for Democracy and Justice for Haiti, “Justice
for Haiti: The Raboteau Trial,” undated, http://ijdh.org/articles/article_justice-for-haiti_raboteau-trial.php
(accessed April 1, 2011).